Democrats botch filibuster reform

Article by: Ezra Klein

Washington Post

January 25, 2013 - 6:39 AM

Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell have come to a deal on filibuster reform. The deal is this: The filibuster will not be reformed. But the way the Senate moves to consider new legislation and most nominees will be.

"I'm not personally, at this stage, ready to get rid of the 60-vote threshold," Reid, D-Nev., said Wednesday, referring to the number of votes needed to halt a filibuster. "With the history of the Senate, we have to understand the Senate isn't and shouldn't be like the House."

What will be reformed is how the Senate moves to consider new legislation, the process by which all nominees - except Cabinet-level appointments and Supreme Court nominations - are considered, and the number of times the filibuster can be used against a conference report.

But even those reforms don't go as far as they might. Take the changes to the motion to proceed, by which the Senate moves to consider a new bill. Reid seemed genuinely outraged over the way the process has bogged down in recent years.

"What the Republicans have done is turn the motion to proceed on its head," he said. "It was originally set up to allow somebody to take a look at a piece of legislation. What the Republicans have done is they simply don't allow me to get on the bill. I want to go to it on a Monday; they make me file cloture; that takes till Tuesday. Then it takes two days for the cloture vote to 'ripen,' so now it's Thursday, and even if I get 60 votes, they still have 30 hours to twiddle their thumbs, pick their nose, do whatever they want. So, I'm not on the bill by the weekend, and in reality, that means next Monday or Tuesday."

But the deal Reid struck with McConnell doesn't end the filibuster against the motion to proceed. Rather, it creates two new pathways for moving to a new bill. In one, the majority leader can, with the agreement of the minority leader and seven senators from each party, sidestep the filibuster when moving to a new bill. In the other, the majority leader can short-circuit the filibuster against moving to a new bill as long as he allows the minority party to offer two germane amendments that also can't be filibustered. Note that in all cases, the minority can still filibuster the bill itself.

A pro-reform aide I spoke to was agog. "Right now, you have to negotiate with McConnell to get on a bill," he said. "Tomorrow, if this passes, you still need to negotiate with McConnell to get on a bill. It changes nothing on how we move forward."

The agreement also limits the number of times you can filibuster a bill after both the House and the Senate have agreed to it, and it limits the post-filibuster period on most nominations from 30 hours to two hours. Both reforms will speed the Senate's pace a bit - the limit on post-cloture debate for nominations is particularly welcome among reformers - but neither is anything close to a game-changer. The question among some reformers, then, is what happened?

Last May, Reid shocked observers when he went to the Senate floor and apologized to Democratic Sens. Jeff Merkley of Oregon and Tom Udall of New Mexico for blocking their efforts to weaken the filibuster. "These two young, fine senators said it was time to change the rules of the Senate, and we didn't," Reid said then. "And they were right. The rest of us were wrong - or most of us, anyway. What a shame . . . If there were anything that ever needed changing in this body, it's the filibuster rule, because it's been abused, abused and abused."

Reformers think Reid changed his mind again in December, after a series of amendments to the defense authorization bill went awry and he began to worry that a talking filibuster, if not properly managed on the floor, could actually mean no filibuster at all in some cases. Reid said as much to me when I interviewed him. When I asked him why he didn't go for Merkley's talking filibuster proposal, he said he'd concluded that it actually does get rid of the 60-vote threshold. He was, instead, pursuing a gentleman's agreement with McConnell to encourage more talking filibusters.

A second explanation for Reid's early enthusiasm for reform might be that Reid needed to persuade McConnell to strike a deal and that the only way to do that was to scare him a bit. "Whenever you change the rules here," Reid said, "you have to show the other side you can change them with 51 votes." It's the fear of the partisan reforms, in other words, that leads to bipartisan reforms.

Reid still wants to keep Republicans a little scared. He recalled that earlier in the 112th session of Congress, Senate Republicans began filing motions to suspend the rules after their filibusters were broken. "They couldn't win these votes," Reid said. "It just ate up time. I put up with it for a while and then said no more. I went to the floor, and I said 'That's dilatory.' The chair said, 'No; it isn't.' I overruled the chair, and now you can't do that because I set a precedent. I'm capable of doing more of that."

I asked Reid whether he thought the filibuster could survive in a Senate where, in truth, the majority leader, alongside 49 other senators and the vice president, could change any rule they wanted.

"The only way we'll get rid of the filibuster is if it continues to be abused," he said. "Hopefully, what we'll do here will stop some of the abuse, but what will happen if the minority continues to abuse the rules is we won't get rid of the filibuster, but we'll go to something like what 1/8Sen. Tom 3/8 Harkin has pushed, where one vote is at 57, and then another vote is at 55."

But for now, Republicans have little to fear. The filibuster is safe. Even filibusters against the motion to proceed are safe. And filibuster reformers have lost once again.